Public Knowledge Urges Court to Protect Home Recording

Public Knowledge filed an amicus brief with the
Central District of California today in Fox
v. Dish, a case that could threaten how consumers record and view
programming in the privacy of their home. While this case is only in the
preliminary injunction stage, these pre-trial stages have become increasingly
important in copyright cases. Consequently, this case has the potential to
upend long-standing fair use principles.

The case involves DISH’s “Hopper,” one of DISH’s set-top boxes. The Hopper can
be set (by the customer) to record prime-time television on any of the four
major broadcast channels. For some programming, the Hopper gives viewers the
option to play back the programming without commercials beginning the following
day.

Fox argues that this is not protected
under the fair use doctrine, arguing that the Supreme Court’s analysis in Sony v. Universal
Studios does not apply. Fox claims that DISH is not only directly
liable for copyright infringement because of the way the Hopper works, but also
secondarily liable because DISH provides equipment used by customers to make recordings. Under the
theory of secondary liability, one person or company becomes responsible for
the illegal actions of another because of the role that person or company plays
in the illegal action. Here, Fox argues that users who record programming to watch it later are copyright
infringers if they skip commercials. Fox’s argument is not limited just to DISH
customers, either. By accusing users of copyright infringement, Fox hopes
to hold DISH secondarily liable.

PK argues in its brief that selling a device cannot constitute direct copyright
infringement because the element of “volition” is missing—it is the users
who decide to use the device; DISH merely supplies its customers with the tools
they use. And, importantly to users, PK argues that home recording is still a
fair use, and that copyright law does not give Fox the right to control the
exact manner in which viewers play back their recordings.

We hope the court will see what would result if Fox’s arguments win the day,
and the potential effect this change would have on personal, private, in-home
consumption of television. For almost 30 years, consumers have been able to
“time-shift” programming—there is no reason for this to change now.